MURUGA CHETTY Vs. RAJASAMI

JUDGEMENT

(1.) This is an application by the 2nd appellant in S.A. No. 1045 of 1907 for the restoration of the second appeal, setting aside the order of dismissal for default passed on the 26th January 1910. The case was posted for orders under Rule 100(a) of the Appellate Side Rules of Practice as the appellant had failed to pay the charges for printing the papers in the case. The appellant did not appear either in person or by pleader when the appeal was called on for hearing on the morning of the 26th January, and it was dismissed for default with the 3rd respondent s costs, by Munro and Krishnaswami Aiyar, JJ. The application for restoration was put in on the 74th February 1910. As the 3rd respondent opposes the restoration of the appeal, we have gone fully into the circumstances under which the appeal was dismissed. The appellant has put in an affidavit on which he relies to show that he was prevented by sufficient cause from appearing at the hearing of the case and, if we should hold against him on this point, that he is otherwise entitled to have the appeal restored. In that affidavit he says that he had sent the necessary funds to his vakil, G. Krishnaswami Aiyar, for the payment of the printing charges and that the failure to pay the same was not due to any default on his part. In other words, he lays the blame for the non-payment on his vakil. Two affidavits have been put iii by the vakil and two by his clerks, Lakshmiah and Bhashyam, respectively, and they disclose a remarkable state of circumstances.No money was paid towards printing charges in the case by the vakil. The client had sent a money order to the pleader for Rs. 40 early in January 1909. The case was posted for orders on the 5th March 1909. Owing to non-payment of the charges, the time for payment was extended for two weeks from that date. The client paid on that date Rs. 28 to his vakil. Lakshmiah, one of the clerks, wrote to the appellant on the 15th March 1909 as follows:-"Received the letter written by you and learnt its contents. When you were here the printing bills were amended and it was found that Rs. 48 had to be paid for one bill and Rs. 20 for the other ; up till now exclusive of the sum of Rs. 40 you sent to Aiyar, you paid me Rs. 28 and went away. On my now asking Aiyar for the money, he said that the money received by him from you was spent and asked me to get the money from you and pay Rs. 40 for the bill. Therefore, as soon as you see this letter remit to my address Rs. 40 by money order, and then attend to other affairs. If you fail to send, the case will be spoiled and there will be no use in blaming us". The letters written by the appellant to the vakil or his clerks have not been produced. On the 15th July 1909 the clerk Bhashyam wrote to the appellant as follows :-"Received your letters. I did not write any reply as the court closed for two months. Your appeal paper is being printed. We shall let you know the date of hearing". Again, on the 17th July 1909 the same clerk wrote thus :- "Your letter was received. The papers in the said appeal are being made ready. You need not in any way be anxious. We shall let you know if there be anything particular."

(2.) It would thus appear that after Lakshmiah s letter of the 15th March 1909 the client was not pressed to send any more money It may be observed that the whole amount of Rs. 68 paid by the client was intended for the printing charges. The vakil tells us that he was appearing in the case without any remuneration-The appeal was dismissed for default, as already mentioned, on the 26th January 1916. On the 28th, Bhashyam wrote as follows: - "Your second appeal referred to above was posted to the 26th instant for hearing and decided against us, that is, the appeal was dismissed."

(3.) It is quite clear from the letters referred to above that the client was informed by the vakil s clerks that his case was going on all right, and that he was finally informed that it was decided against him. He never had the slightest intimation that the printing charges were not paid, or that the appeal was dismissed for default of appearance. From what was stated before us by the appellant s vakil it would appear that no further letter was written to the client, but he himself went over to Madras to put in an application for restoration on the 14th February 1910 and engaged another Vakil, G.S. Ramachandra Aiyar, along with Mr. G. Krishnasawmi Aiyar. The latter put in an affidavit dated the 14th February 1910, in which he acknowledges the receipt of the two sums of Rs. 40 and Rs. 28 from the appellant and says : "My clerk V. Lakshmiah entered the said amounts paid by the appellants to the credit of a different second appeal from the same South Arcot District, namely S.A. No. 49 of 1907, and the printing charges of this appeal were not paid. This case was posted on the evening of the 25th January 1910, for orders under Rule 100(a) of the Translation and Printing Rules, and my clerk Bhashyam Iyengar brought it to my notice then ; I had a recollection that the party had paid the printing charges after time and that time had been extended by the court and on looking over the accouut I found that a mistake had been committed. I wanted to bring this matter to the notice of the court on the 26th January 1910 and on that day this case was posted as the fourth case in the list. On the 26th January 1910,I had three fresh small cause suits posted before His Honor, the Third Judge of the Small Cause Court, for trial and two original suits No. 208 of 1903 and 199 of 1908 before his Lordship Justice Wallis. As this case was the fourth case in the list, I waited for a few minutes in my chambers, made some arrangements for the Small Cause Court work and went to the Original Side to see when my said original cases were likely to be reached and then came to this court. When I reached the doors of this court, it was about a few minutes after this case had been called on and dismissed for default."